On June 18, the U.S. Supreme Court struck down the Trump administration's rescission of the Obama administration's immigration relief program known as Deferred Action for Childhood Arrivals (DACA). In explaining and then defending its DACA rollback, the Trump administration had raised an array of claims that, if accepted, would have undercut numerous regulatory rule of law fundamentals. Instead, the Court strengthened these longstanding requirements. Department of Homeland Security (DHS) v. Regents will become central to battles over the many Trump administration rollbacks and reversals of environmental and other regulations.
In the Trump DACA rescission, the administration relied heavily on an argument it has often deployed to justify regulatory rollbacks. It claimed that the Obama administration DACA policy was so legally flawed that the Trump team had no choice but to reverse the policy. And in this DACA rescission, like many of its environmental regulatory rollbacks, the Trump regulators provided little more than conclusory analysis of reliance interests flowing from the earlier action and similarly skimpy analysis of effects of the new actions. Similarly flawed approaches combining new disavowals of legal authority with skewed and often conclusory analysis of effects are especially evident in climate deregulatory actions and the "waters of the United States" rollback, but in many other actions as well. (For more analysis of such arguments, which I've earlier called "statutory abnegation" claims, see William W. Buzbee, Agency Statutory Abnegation in the Deregulatory Playbook, 68 Duke Law Journal 1509 (2019))
The Supreme Court majority, in an opinion by Chief Justice John Roberts, agreed with challengers that the Trump action violated a litany of regulatory rule of law fundamentals. It strongly reaffirms lines of Supreme Court cases stating that agencies changing regulatory policies must: 1) act with an appropriate understanding of the scope of their authority and their own past claims about legal authority, 2) analyze reliance interests flowing from the earlier regulatory action now being undone, 3) assess how any possible corrective or new action might be tailored to avoid harms associated with unsettling such reliance interests, or at least grapple with such interests and other effects, and then justify the choice, and 4) stick with its initial contemporaneous explanation for the policy change.
Hence, when future courts conclude that other Trump deregulatory actions were rooted in agency errors about their legal power or sidestepping of effects analysis, this case will be a major precedent. Such agencies, like DHS, will have to try again, grappling correctly and fully with relevant law, providing comparisons of their old and new legal claims, and analyzing effects of the old and new actions.
In making clear that the agency's original "contemporaneous" explanation is what must justify an agency action, the Court acknowledges that agencies have a bit of room to "elaborate" on their initial explanation. However, an agency that belatedly realizes it provided a legally flawed explanation and wants to provide new justifications will have to start again. The agency may have had room to adjust its immigration enforcement policy, the Court says, but under the APA, it still needs to stick with the reasons it initially provided. Agencies cannot "cut[] corners," nor can they provide later, new "post hoc rationalizations."
So Trump agencies and lawyers are stuck with their often flawed and poorly explained actions. That agencies often have room to adjust policies — a common situation that the Court acknowledges — does not mean they can do so without the procedures and reasoned explanation long required. Agencies that short-circuit their analytical and reasoning obligations will be found in violation of the Administrative Procedure Act (APA).
Another passage that could become important is the Court's strong affirmation of the presumption of judicial review. Policy shifts, even if concerning enforcement policies where agencies wield broad discretion, do not escape judicial scrutiny.
Overall, the Court has yet again strongly reaffirmed the regulatory rule of law fundamentals about agency policy change obligations set forth in the Supreme Court's earlier State Farm, FCC v. Fox, and Encino Motorcars cases. If the Trump administration thought its many fast-tracked and poorly reasoned deregulatory actions would be affirmed by a friendly Supreme Court, yesterday's rejection dashes that expectation, much as the Court last year dashed such hopes in rejecting the Trump administration's effort to add a citizenship question to the census. DHS v. Regents will become a central citation in the dozens of cases challenging Trump administration rollbacks. And within agencies and the executive branch, this case's affirmation of regulatory rule of law fundamentals will have good-government effects, empowering regulators seeking to provide full and honest analysis of their legal authority and effects of regulatory actions.
